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| Family Medical Leave Act (December) |
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| Written by Nancy Mayer, JD |
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In 1993 the US Congress promulgated the FMLA to give employees more flexibility to balance work and personal family obligations. The FMLA guarantees time off of up to twelve weeks. Depending on the employer this time could be paid, unpaid or a combination of paid and unpaid. The type of leave taken depends on the reasons for the leave and company policies. There are also eligibility criteria and medical certification guidelines. In January 2009 revisions to the FMLA took effect. These amendments increased the amount of time when a member of the military is the disabled party and made it harder for others to claim FMLA. The FMLA provides eligible workers with up to twelve weeks of leave to meet family responsibilities for any of the following reasons:1) for the birth and care of the newborn child of an employee, 2) for placement with the employee of a child for adoption or foster care, or 3) to care for an immediate family member (spouse, child, or parent) with a serious health condition. The FMLA also allows employees to take leave for their own serious health conditions. When an employee takes leave under FMLA the employer must give the employee their job back or give the employee another job with equivalent pay and benefits. In general, to be eligible an employee must have worked for an employer for at least 12 months, have worked at least 1,250 hours in the 12 months preceding the leave, and worked at an employer that has at least 50 employees within 75 miles. FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. Employers can request documentation of the conditions that allow an emplyee to use FMLA. However this medical information does not need to contain specific diagnoses. Medical documentation to support FMLA must certify that the medical condition or other event is temporary in nature. FMLA is for temporary needs and does not apply to ongoing chronic conditions. However, ongoing chronic conditions can have temporary critical situations that require leave away from work. These short term critical needs make a person eligible for FMLA. The recent amendments extend coverage to employees with spouses, children, or parents who are now serving on (or who have been called up for) active duty in the military for up to 12 weeks of unpaid leave for a qualified emergency arising from a family member’s active military duty. These amendments also extend this leave up to 26 weeks if those loved ones become seriously ill or injured while on active duty, One issue is how FMLA interacts with worker’s compensation when the person requeting the leave is the person with a medical condition. The answer is state specific. FMLA provides a protected medical leave entitlement, whether the medical leave is needed because of something that happened on the job or outside the job. Worker's Comp provides compensation for injuries incurred in the course of performing work for an employer. In some situations a Workers Comp claim would automatically terminate an FMLA claim,. Generally, receiving money on a Worker's Comp claim doesn't have any effect on the employer's obligation to allow an employee to take leave under FMLA The one exception would be a Worker's Comp claim that establishes permanent total disability, in which case the employer is not required to keep the job available if there is no prospect of the employee returning to work before the expiration of the 12 weeks of FMLA leave. There may also be interactions with other potential claims such as Social Security Disability. Sometimes a person may not claim under FMLA when they are awaiting an answer on other disability applications. If the disability claim is denied then the applicant may apply to receive FMLA leave retroactively. As with many other Federal entitlements no employer may discriminate against an employee who uses FMLA to take time away from work. If an employer does discriminate there are many protections and possible penalties available to the person discriminated against. Some things to remember about FMLA: 1– It is for critical short term medical needs, it does not cover chronic long term needs with no foreseeable end. 2– It does not protect an employee from being fired for other lawful reasons (e.g., layoffs or for cause) while out of work on leave. 3– Employees requesting leave under FMLA are protected from retaliation. 4– FMLA only provides for time away from work, it does not require an employer to pay the employee for this time away from work. 5. FMLA interaction with other disability entitlements is complicated and state specific requiring consultation with employment law specialists. In summary, the FMLA provides a way for individuals to balance their work and family life without having to worry about losing their jobs. For people with diabetes it may provide a way for coping with short term medical crises related to diabetes, as well as other family medical issues. Note: This is not legal advice. I'm not your attorney. Some of this information will vary in your state. This provides general information and a start in deciding what to tell your lawyer. Nancy Mayer, Attorney-at-law |
